Criminal Procedure MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on a criminal procedure MBE question.
You will see 25 scored criminal law and procedure MBE questions on the Multistate Bar Exam. In this post, we will review a criminal procedure question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Criminal Procedure MBE Tip of the Day
MBE Tip of the Day Instructions:
Do your best to answer this criminal procedure MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? Then, what is the rule and analysis? Finally, what is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Criminal Procedure MBE Question
A man was arrested as the main suspect in a murder investigation. He was brought into an interrogation room, but was not read his Miranda rights. A police officer asked the man “Where were you on the night of May 2nd?” The man proceeded to confess to the murder. He also told the officer where to find the murder weapon. The officer immediately left the room, and he then realized that he accidentally forgot to read the man his Miranda rights. He reported his mistake to the chief, who decided to place the man in a holding cell while they searched for the weapon. The weapon was recovered. Two days later, the man was brought back into the interrogation room where he was questioned by a different officer. Prior to questioning, this officer properly read the man his Miranda rights. The man stated that he understood his rights and repeated his confession, although he left out any discussion of the murder weapon.
At his trial, the man admitted that both of his statements were voluntarily made, but argued that they should each be suppressed, along with the weapon, all of which were fruit of a Miranda violation.
Which, if any, pieces of evidence should be suppressed?
(A) Both of the confessions and the weapon should be suppressed.
(B) The first confession and the weapon should be suppressed, but the second confession should be admitted.
(C) The first confession should be suppressed, but the weapon and the second confession should be admitted.
(D) Both of the confessions should be suppressed, but the weapon should be admitted.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Criminal Procedure MBE Question
Subject: Criminal Procedure
Legal Issue: 5th Amendment and Miranda Rights
Legal Rule and Analysis: The Supreme Court has held that officers are required to read a suspect his Miranda rights before the suspect is subject to a custodial interrogation. If the Miranda rights are not given, any incriminating statements made during the interrogation will not be admissible. However, physical evidence obtained as a result of an inadmissible confession will be admissible, so long as the confession is voluntary. Thus, the weapon will be admitted into evidence.
Further, as long as the police did not engage in any nefarious conduct, a subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. A suspect is not precluded from waiving his Miranda rights knowingly and intelligently if they have previously given an unwarned confession. If Miranda rights are read to the suspect after an unwarned confession and a subsequent confession is completely knowing, intelligent, and voluntary, it will be admitted. The “taint” of an earlier unwarned confession is not transferred to a subsequent voluntary confession made after properly waiving Miranda rights. The totality of the circumstances should be examined.
In this case, it is clear that the man’s first confession was obtained in violation of Miranda as he was not read his rights prior to being subject to a custodial interrogation. This confession will thus be suppressed. The man admitted that he made this confession voluntarily, and there is no evidence of improper conduct by the police. The officer accidentally made a mistake (as opposed to designing a scheme to elicit a confession without warnings, then administering warnings and forcing the man to confess again). As a result of this voluntary confession, the weapon will not be considered fruit of a constitutional violation, as the man’s constitutional rights were not violated.
The second confession will also be admitted as it was made voluntarily after a knowing and intelligent waiver of the man’s Miranda rights. As stated, there was no scheme crafted by the police to elicit a double confession out of the man. The man admitted his confession was voluntary, and there are no indications of any coercion or that his waiver was anything but knowing and intelligent. Therefore, the man’s second confession should be admitted.
Conclusion: The first confession should be suppressed, but the weapon and the second confession should be admitted.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (C) is therefore correct. (A) is incorrect because it does not recognize that the weapon is not fruit of the poisonous tree and that the taint of the first confession does not apply to the second. (B) is incorrect because it does not recognize that the weapon is not fruit of the poisonous tree. (D) is incorrect because it does not recognize that the taint of the first confession does not apply to the second.
Note that the man admitted the confessions were voluntary so the 14th Amendment due process clause would not preclude admission of the confessions or the weapon.
MBE Tip: Understand the true scope of constitutional rights! This will help you identify exactly which pieces of evidence should be suppressed as tainted fruit.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: As long as an unwarned confession is voluntary, fruits discovered as a result of this confession are not tainted. Further, a suspect is still perfectly capable of waiving Miranda rights that were read to him following an unwarned confession. The actions and motivations of the police should be investigated, but absent a coercive scheme, a voluntary confession after a knowing and intelligent waiver of Miranda rights will be admissible.
MBE Tip: Understand the true scope of constitutional rights!
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
Looking for additional MBE help?
If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.
Looking for MBE Help?
We offer the following MBE products and services:
- An MBE course, which comes with several MBE sessions, all 7 MBE outlines, our MBE diagnostic, MBE guide, and MBE one-sheets!
- MBE private tutoring for those seeking one-on-one help to pass the MBE.
- Real MBE questions! We offer the latest NCBE-released questions!
- Our MBE favorites series, which dissects the “favorite” issues the MBE tests. You have instant access to them online!
- An MBE Seminar for those looking for strategies to improve their MBE score.
- An MBE guide, which has a guaranteed 7-point score increase.
- An MBE diagnostic for those who are having trouble determining why their scores are not increasing.